When the Finance Bill goes beyond Budget making

The passage of the Finance Bill, 2017, by the Lok Sabha on March 22 has rekindled the widespread debate over using a Money Bill to amend other pieces of legislation in the financial and general sphere. First introduced on February 1, the Bill has come under the scanner with critics voicing opinions on its all-pervasive nature and attempts by the BJP-led government to muscle changes into the legal framework without the nod of the upper house.

Finance Bills are annual features of Indian parliamentary democracy, used to adjust rates of taxation and bring changes in the fiscal structure. However, what makes the Finance Bill, 2017, unique is the sheer extent of the legislative changes proposed. The amendment of around 40 central statutes, many of which would have a tough time being classified as Money Bills if introduced separately, has taken this year’s exercise into highly uncharted territory.

Modifications making the Aadhaar mandatory for filing tax returns, capping cash transactions at ~2 lakh, the merger of several tribunals and increasing the authority of the central government in their governance, are examples of a few of these. The contentious issue of electoral bonds and relaxations of mandatory disclosures in line with political funding have also faced marked scepticism and scrutiny.

Last year the government had amended the Foreign Contribution (Regulation) Act, 2010, through the Finance Act, 2016, which drew the ire of civil society activists for having been passed through the money bill route.

Under the Constitution, a Money Bill is exempted from the usual rigours of a bicameral law-making process. As this exception renders the parliamentary functions of the Rajya Sabha to those of a concerned spectator, the law has been careful in defining what constitutes a Money Bill. Under Article 110 of the Constitution, a Bill can be classified as a Money Bill only if it (i) imposes, alters, abolishes or regulates any tax; (ii) regulates borrowing or alters the financial obligations of the government; and (iii) affects the custody of the Consolidated Fund of India or appropriates payments, withdrawals and expenditures from the fund and matters incidental to all these actions.

Article 110(3) further states that the decision of the Speaker of the lower house shall be final for all questions on whether a Bill is a Money Bill or not. This assertion in the Constitution has led to many, including Subhash Kashyap, constitutional expert and former secretary general of the Lok Sabha, to opine that the classification of a Money Bill falls outside the purview of judicial review. “The Speaker is to certify a Bill as a Money Bill. There is no appeal to this in a court or any other judicial forum,” says Kashyap.
Others have taken a different stand as the provision does not expressly prohibit the intervention of the constitutional courts, which forms a basic tenet of the Constitution and supports the theory of distribution of power. Even though the Supreme Court has dealt with the possibility of judicial review in the Speaker’s classification of a Bill as a Money Bill and answered in the negative, the issue still continues to be analysed by the apex court. The most recent challenge to the Speaker’s classification comes through a petition filed by Member of Parliament Jairam Ramesh, who has questioned the passage of the Aadhaar Bill, 2016 (now the Aadhaar Act, 2016), as a Money Bill. The matter is still pending before the court and awaits a final adjudication. According to Justice Vikramjit Sen, former judge, Supreme Court, the real question is whether a Bill is obviating a legal process through its introduction as a Money Bill. “However, a Money Bill should not ordinarily be subject to judicial review,” adds Sen.
There are other ‘final’ decisions in the Constitution that have been held to be subject to scrutiny by the courts. For example, a 1993 Supreme Court decision held that the disqualification of legislative members by the speaker under the Tenth Schedule of the Constitution was a judicial decision, subject to review.
According to R S Sodhi, former judge, Delhi High Court, a Money Bill must abide by the provisions of Article 110 of the Constitution. “If not, it is playing truant with Parliament,” says Sodhi.

Experts have argued that the Indian situation is different from that of the UK. Unlike their concept of parliamentary sovereignty, India’s written Constitution ensures constitutional sovereignty, which must be abided strictly. Even though Article 122 of the Constitution says that procedural irregularities in parliamentary affairs are not subject to judicial interference, the same cannot be allowed for constitutional irregularities, note experts.

Countries such as Australia, Canada and South Africa all have mechanisms to challenge such misclassifications. “Whether a Bill is a Money Bill or not must be debated in Parliament. If collateral acts are passed in the garb of a money bill, it would be an overreach of the legislative process,” Sodhi said.

The US Supreme Court has also stated that a law passed in violation of the Origination Clause, which classifies US revenue bills, would not be immune to judicial review. Even Pakistan has, on several instances, struck down laws that were erroneously legislated through the Money Bill route. Whether India will have its turn at scrutinising such actions remains to be seen.

SOME KEY LAWS PROPOSED TO BE AMENDED BY THE FINANCE BILL, 2017

•   Income Tax Act, 1961
• Securities Contract (Regulation) Act, 1956
• Depositories Act, 1996
• Companies Act, 2013
• Foreign ExchangeManagement Act, 1999
• Competition Act, 2002
• Securities and ExchangeBoard of India Act, 1992
• Recovery of Debts Due to Banks and Financial Institutions Act, 1993 Reserve Bank of India Act, 1934 Representation of the People Act, 1951

Business Standard New Delhi,27th March 2017